Superior Court of California

County of Los Angeles

Department 78







  Case No.: 19STCV06246


Hearing Date: July 16, 2020





Defendant Smith Patten LLP’s Motion to Set Aside and Vacate Entry of Default is DENIED.


This is an unlawful detainer action. The Complaint alleges as follows. Defendant Smith Patten (“Patten”), a business entity, signed a lease agreement on January 25, 2016 for a period of 5 years and 3 months at $5,625 per month/increasing each year to $6,146.88 in 2019. (Compl. ¶ 6.) On January 7, 2019, Plaintiff 888 Tower LP (“888 Tower”) served a 3-day notice to pay rent or quit, and Patten failed to comply within 3 days. (Compl. ¶¶ 7-8.) 888 Tower seeks damages in the amount of the past due rent plus the fair market rate per day from February 1, 2019. (Compl. ¶ 17.)


On February 25, 2019, 888 Tower filed the Complaint alleging a single cause of action for unlawful detainer.

On March 7, 2019, this Court entered default against Patten.

On July 7, 2019, this Court entered judgment against Patten in the amount of $35,433.93.

On September 18, 2019, the Court issued a Writ of Execution in the amount of $36,148.34.

On January 3, 2020, Patten filed in the instant Motion to Set Aside/Vacate Default Judgment.

On April 23, 2020, 888 Tower filed an Opposition.

On July 9, 2020, Patten filed a Reply.


Patten moves for an order setting aside the default and vacating the default judgment. (Motion at p. 3.) Patten contends that the default judgment is voidable on the grounds that 888 Tower did not serve its designated agent by direct or substitute service of process. (Motion at p. 6.) In the alternative, Patten argues that it is entitled to mandatory and/or discretionary relief pursuant to Code of Civil Procedure section 473(b) due to mistake and/or inadvertence of counsel. (Motion at pp. 7-8.)

The Court entered default against Patten on March 7, 2019.  The entry of default terminated Patten’s “rights to take any further affirmative steps in the litigation until either [his] default is set aside.. [Citations]” (Devlin v. Kearny Mesa Amc/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) “‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation]” (Id. at 385-386.)

“Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) The three options are: (1) Code of Civil Procedure section 473.5, subdivision (a); (2) “the party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts;” or (3) Code of Civil Procedure section 473, subdivision (d). (Id. at 180-182.)


  • Is the Entry of Default Void?


Code of Civil Procedure section 473, subdivision (d) states that: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473.)

The analysis pursuant to section 473, subdivision (d) “does not hinge on evidence: A void judgment’s invalidity appears on the face of the record, including the proof of service.”(Trackman v. Kenneysupra, 187 Cal.App.4th at 181.) This means that the Court may not consider declarations stating, for example, that the defendant was not actually served or that another address would have been better. (Id. [“the trial court erred by considering the evidence”].)

“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.”  (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

“Once six months have elapsed since the entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, as modified on denial of reh’g (May 26, 1994).) A default judgment may be void on its face if the jurisdictional defect is shown by the proofs of service. (Id.) In this case, more than six months have elapsed because this Court entered default on May 14, 2019, and the instant Motion to Set Aside Default was filed over seven months later on January 3, 2020. Accordingly, in order to obtain relief 888  under  473(d) Tower must show that the entry of default is void on its face.

Here, the proof of service shows that 888 Tower served Patten by personal service to a person on behalf of an entity or as an authorized agent under item 3b: “Mia Martin – Person in charge, Authorized to accept service” on February 26, 2019 (Oppo., Exh. 1.)

Patten is a law firm that holds itself out to be a limited liability partnership (“LLP”). (Motion at p. 3.) The rules for service of process apply differently based on an entity’s legal status. However, 888 Tower argues that Patten is not, in fact, a registered legal partnership. (Oppo. at p. 3.)  888 Tower contends that Patten is a business entity of unknown form that is not a registered business entity of any form, and thus which does not have a registered agent of process. (Oppo. at p. 8.) 888 Tower argues that Patten has liability insurance taken out by “Smith Patten PC” and argues that Patten’s emails lack an entity designation. (Oppo. at p. 8; Exh. 11.)

The Court agrees with 888 Tower that the form of Patten’s business organization was unknown at the time of service.

When a business organization’s form is unknown, Code of Civil Procedure section 415.95 applies which states: “A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.95.)

Here, the Proof of Service on its face states that service was made on the person in charge of the office. However, 888 Tower has not submitted evidence that it thereafter mailed a copy of the summons and complaint as required by section 415.95. Proof of service by mail may be made in several methods pursuant to Code of Civil Procedure section 1013a. The Clerk of the Court mailed notice of the case on February 25, 2019. This would have been sufficient under section 1013a(4), however, the addresses on the two notices were incomplete and the notices were not delivered.

Nonetheless, California courts have held that California’s jurisdiction and service of process statutes (“the provisions of this chapter”) should be “liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant[.]” (Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) From a practical standpoint, the courts and legislature seek to “eliminate unnecessary, time-consuming, and costly disputes over legal technicalities, without prejudicing the right of defendants to proper notice of court proceedings.” (Id.)

Here, section 415.95 only requires a plaintiff to “leave a copy” of the summons and complaint at the business during business hours. However, 888 Tower effectuated full personal service with a proof of service, which goes beyond the requirements of section 415.95. Further, the emails attached to Patten’s instant Motion indicate actual notice of the case. For example, an email dated March 12, 2019 by Spencer Smith of Smith Patten states “[…]confirming that the parties are going to work out an information resolution this week and there is not (sic) need to take any further action on the UD action.” (Motion, Exh. F.) The fact that 888 Tower fails to provide evidence of follow-up mailing is the type of technicality the Pasadena Medi-Center court sought to eliminate.

Accordingly, the entry of default is not void due to improper service because the proof of service for personal service is proper on its face.


  • Code of Civil Procedure 473(b) Mandatory/Discretionary Relief


Civil Code of Procedure section 473, subdivision (b) states:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment . . . unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

“The statute includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right. Although this bifurcation is not demarcated in any internal subtitling, it is plainly evident in the textual structure of the statute.¿Section 473, subdivision (b), begins with broad language authorizing relief from a ‘judgment, dismissal, order, or other proceeding’ for ‘mistake, inadvertence, surprise, or excusable neglect,’ and then, in narrower proviso language applicable to a ‘default,’ ‘default judgment’ or ‘dismissal,’ requires relief upon the filing of an ‘attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory relief provision fits into the broader language of the statute as a special case tucked within it. ‘The provision of¿section 473 which¿mandates relief from a judgment of dismissal or default when the motion is based on an¿attorney’s affidavit of fault does not mandate relief from other judgments. In all other cases, relief is discretionary.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25–26.)

Discretionary relief is not available here because the instant Motion was not filed within six months of the clerk’s entry of default. (Code Civ. Proc. § 473(b).) In its Reply, Patten argues that the Court entered default on July 10, 2019. (Reply at p. 4.) However, that is not correct. The Court entered judgment on July 9, 2019. The Court’s clerk entered default against Patten on March 7, 2019. Accordingly, this Motion to Set Aside filed on January 3, 2020 is more than six months after the clerk entered default.

However, mandatory relief due to attorney error is available under section 473(b) because the instant Motion was filed within six months of the entry of default judgment. (Code Civ. Proc. 473(b).) Patten submits a declaration of its counsel, requesting in relevant part that “default judgment in this matter be vacated as a result of my surprise and/or inadvertence.” (McCoy Decl. ¶ 19.) However, the declaration does not provide sufficient information for the Court to determine whether the mistake/neglect/inadvertence/surprise (in being unaware of this case) was the fault of Patten or McCoy. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442.) The declaration here by attorney McCoy does not take responsibility for the default or claim fault. McCoy declares that he and Patten were “blindsided” by the entry of default. (McCoy Decl. ¶ 19.) Further, the declaration primarily describes actions taken by Patten and representations allegedly made by 888 Tower to Patten. (McCoy Decl. ¶¶ 5, 10, 12-15; Exhs. F-G.)  For mandatory relief, default must be caused by the attorney. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 909.)

Even more, Patten may not claim any further relief due to lack of notice because McCoy declares that he and Patten received the notice of entry of default by mail around July 14, 2019. (McCoy Decl. ¶ 18.) McCoy does not explain why he waited six months after receiving notice of the entry of the default to file the instant motion, particularly since the records for this case reflected an application for, and issuance of, a writ of execution in September 2019.

Accordingly, Defendant Smith Patten LLP’s Motion to Set Aside Default is DENIED.

Dated: July 16, 2020


                                                               Hon. Robert S. Draper

                                                               Judge of the Superior Court